F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

R E D D I N G R A N C H E R I A , Plaintiff-Appellant

,

v

.

S A L L Y J E W E L L , in her official capacity as Secretary of the United States Department of the interior; K E V I N K. W A S H B U R

N , in his official capacity as the Assistant Secretary for I ndian Affairs for the United States Department of the I nterior, * Defendants-Appellees

. N o. 12-15817

D.C. No. 3:11-cv-01493- SC

OPI NI ON

A ppeal from the United States District Court for the Northern District of California Samuel Conti, Senior District J u dg e, Presiding

Arg ued and Submitted April 8, 2014—San F r ancisco, California

F iled J anuary

20, 2015

B efore: Mary

M. Schroeder, Kermit Victor L ipez * *

, and Consuelo M. Callahan, Circuit J udg es.

* S a l l y J e w ell an d Kev in K. W ash b u rn are su

bstitu ted f o r th eir
p red ecesso rs p u

rsu an t to Fed . R. A

p p . P . 4 3(c)(2 ).

** T h e H o n o rab le K e rm it Victo r L i p ez, Sen i o r Un ited States Circu i t J u d g e f o r th e First Circu it, sittin g b y d esig n atio n

.R E D D I N G R A N C H E R I A V

. J E W

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Opinion by J u dg e Schroeder; Partial Concu rrence and Partial Dissent by J udg e Callahan

SUMMARY * * *

Tribal Matters

The panel affirmed the district court’s judg ment in favor of the federal g overnment insofar as it u p h e l d t h e Secretary of the I nterior’s denial of the a pplication of Redding Rancheria (the Tribe) to operate multiple casinos on restored l a n d s , a n d reversed in part a nd remanded to the ag e ncy for considerat i on of the Tribe’s proposal to close its ex isting Tribal g aming operation upon c o nstruction of a new facility

.

The Secretary denied the Tribe’s request to take into trust

a substantial parcel the Tribe recently acquired f o r the construction and operation of a new g ambling casino. T he I ndian Gaming Reg ulatory Act g e nerally banned g aming on lands that tribes acquired after its enactment i n 1 9 88, but

c r e a t ed an ex ception for tribes with restored lands. The
ag ency d enied the Tribe’s a p plication because, at the time it

wa s s u b m itted, the Tribe was operating a modest casino on land it acquired e ar l ier. The district court g ranted summary judg ment to the g overn m e n t because the Tribe was seeking
to o perate multiple casinos, which the applicable reg ulations
soug h t to prevent. W hile the application wa s pending

, the Tribe advised the ag ency that it was willing to close down its orig inal casino once the new one was in operation.

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tes n o p art o f

th e o p in io n

o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.R E D D I N G R A N C H E R I A V

. J E W

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The panel held that the reg ulation at issue was reasonable, and the Secretary reasonably implemented the restored lands

ex c e ption. The panel further held that the I nd i a n canon (which provides that where a statute is unclear, it must be liberally interpreted in favor of I ndia n s ) d i d not apply in the circumstances of this cas e

. The p anel also held that the Secretary ’ s denial of the Tribe’s application was no t inconsistent with prior ag ency practice, and was not arbitrary and capricious.

The panel held that the a g ency should have considered the Tribe’s a lternative o ffer to move all g aming to the new casino, and v acated i n part the district court’s summary judg ment with instructions to remand to the ag ency to address the issue.

J udg e Callahan concurred in part s I
, I I
, and I I I of the majority ’s opinion; and ag reed that the reg ulation at issue was reasonable, the I n dian canon did not apply

, and there was no

unex p lained chang e in ag e ncy policy

. J u d g e Callahan dissented from part I V of the opinio n b ecause the Tribe did
not fairly prompt the Secretary to consider its alleg e d offer to move its casino and did not ask the district court to consider the alleg ed offer to r emove the casino. J udg e Callahan would not reverse in part and remand for further consideration.R E D D I N G R A N C H E R I A V

. J E W

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COUNSEL

Scott D. Crowell (arg

ued) and Scott W heat, C rowell L aw Offices, Spokane, W ashingt on, for Plaintiff-Appellant Redding Rancheria.

I g nacia S. Moreno
, A ssistant Attorney General, Matthew Marinelli and L ane N. McF adden (arg ued), Attorney s, United States Department of J ustice, Environment & Na t u ral Resources Division, W ashing ton, D .C., for DefendantsAppellees Sally J ewell, Secretary of the Depart m e n t o f the I nterio r a nd Kevin K. W a shburn, Assistant Secretary for I ndian Affairs.

Georg e F o rman and J ay B

. Shapiro, F o rman & Associates, San Rafael, California, for Amicus Curiae R obinson Rancheria of Pomo I

ndians.

OP INION

SCHROEDER, Senior Circuit J udg e:

The Redding Rancheria (“the Tribe”) is a ver y s m a l l I ndian tribe try ing t o r e s tore the Reservation that was taken
away by the United States during the mid-Twentieth century

era of a ssimilation. See City of Roseville v. Norton
, 348 F .3d 1020, 1022 (D.C. Cir. 2003); see also W i l l i a m C. Canby

, American I ndian L a w in a Nutshell 27–30 (5th ed. 2 009) (describing the federal g overnment’s g eneral policy o f terminating tribal recog nition in order to assimilate I n d ian populations); F elix S. Cohen, F ederal I n d ian L aw §1.06 (2005) (n o t i n g that, starting in the 1950s, the federal
g overnment beg a

n an official “p o l i cy of rapid assimilationR E D D I N G R A N C H E R I A V

. J E W

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throug h terminati o n ” )

. The Tribe also wishes to e stablish a successful g aming operation on its land. F or that p urpose, it has asked the Department of the I nterior to t a k e into trust a substantial parcel the Tribe recently acquired for the construction and operati o n of a new g ambling casino. The Secretary of the I nterior (“Secretary ”) denied the request.

The I ndian Gaming Reg u latory Act (“I GRA”) g enerally bans g aming on lands that tribes a cqu i r e after its enactment in 1988, but creates an ex ception for tribes wit h restored lands. 25 U.S.C. § 2719. This case concerns the reg ulations the S e cr e t ary of the I nterior has promulg ated to define a nd place reasonable limits on the restored lands ex ception. The
ag ency f ound the Tribe’s application d id not qualify because,
at the time it was submitted, the Tribe was operating a modest

ca s i n o o n land that it a cquired earlier. The district court g ranted summary judg ment for the g overnment because the Tribe was seeking to operate multiple c asinos, something the applicable reg ulations unquestionably and reasonably a re intended to prevent. W hile the application was p e n d i ng before the ag ency , however, the T ribe advised the ag ency that it was willing to close down its orig inal casino once the new

one w as in operation. T h e ag ency did not meaning f ully address the Tribe’s a lterna t i v e p osition. W e remand to the
ag ency so that it can do so.

F ACTS

The Redding Rancheria was f i r st recog niz e d by the United St a tes in 1922, w ith a reservation of about 30 acres located in rural Northern California. I n 1965, however, it was stripped o f its federal r ecog n ition pursuant to the California Rancheria Act, Pub. L

. No. 85-671, 72 Stat. 619 (1958). The

a c t w as part o f a g e neral e ffort to assimilate I ndians i n t oR E D D I N G R A N C H E R I A V

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American society

. See City of Rosevi lle

, 348 F

. 3 d at 1022. The T ribe eventually joined other California tribes in bring ing suit ag ainst the United States, see Hardwick v. U nited States
, No. C-79-1710 (N.D. Cal. Dec. 22, 1983), and as p art of a resulting settlement, tribal federal recog nition was restored in 1984.

The T ribe then embarked o n a s eries of acquisitions to restore lands to its reservation, and, per its request, each has been taken into trust b y the United States, for a total of about 8. 5 a c r e s. Roug hly 2.3 acres were taken into trust for individual tribe members as part of the settlement ag reement in Hardwick

. T he United States a ccepted the Tribe’s trust-totrust transfer request for these parcels in 1992, and the Tribe beg an operating a s m a l l casino, known as the W in-River Casino, on the 2.3 acre parcel after entering into a ga m ing compact with the state of California in 1 999. The Tribe has

s i n c e submitted several additional land requests. T h e first, b e gu n i n 1 996, was for a Head Start facility

, a nd the

a p p l i cation was not c ompleted and accepted until 2009. Another application, submitted in 2000 and also accepted in 20 0 9
, w as for a burial g r ound of .5 acres. I n 2010, an application f

or admin i s trative building s was a ccepted. According to the Tribe, its land restoration efforts have often b e e n hampered by lack of f unds and the unavailability o f nearby land.

I n 2003, the Tribe submitted a request to the Department of the I nterior to take into trust an additional 152 acres (“the Strawberry F ields”), so the T ribe could construct a n o t her casino. After the Tribe submitted a c ompleted application on December 22, 2008, it amended the application in J uly o f 2 0 1 0 t o include an additional 80 acres. Shortly before the Secretary d e n i e d the application, the Tribe w rote a letter toR E D D I N G R A N C H E R I A V

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t h e a gency , dated December 14, 2010, stating the Tribe wa s willing to c lose its c u r

rent g amin g fa c ilities once its new facility was built. The Secretary denied the Tribe’s application on December 2 2
, 2010, finding that, under the applicable reg u lations, the Tribe c ould not conduct g aming on newly acquired lands because it was already g aming on other lands.

The key statute g overning the T ribe’s g aming a ctivities is the portion of I GRA that covers “restored” tribes. Cong ress passed I GRA in 1988 “ as a means of promoting tribal economic development, self-sufficiency

, and strong tribal
go v e r n ments.” 25 U.S.C. § 2 702. I GRA p ermits I n dian
t r i b e s to conduct g aming on tribal lands subject to certa i n limitations. Section 2719(a) prohibits tribes from g a ming on lands taken into trust a fter I GRA’s 1988 passag e date, but that section includes E x emptions and Ex ce p tions. Of relevance is section 2719(b)(1)(B ), w h ich allows restored tribes to g a me o n any land taken into t r u s t as part of a “restoration o f lands” (the “restored lands ex ception”). There is n o dispute that the Tribe is a “ resto red tribe” within the meaning of the statute. T he issue is whether the land in question is “restored land.”

To define and place reasonable limits on the ex ceptions, the Secretary of the I nterior, in 2008, promulg ated a series o f rules implementing sectio n 2 7 1 9 of I GRA. 2 5 C.F .R. § 292.1. The p u r

p o se of these rules was to “ex plain to the public how the D e p a

rtment interprets” I GRA’s v arious

ex c e ptions and ex emptions, including the r e s t ored lands

ex c e ption. 73 F ed. Reg

. 29,354. Under the Sec r e t a r y ’s int e r p r e t a tion, lands qualify as “restored” and can thus be used for g a ming purposes o n l y i f the tribe establishes a sufficient relationship to the land in what the reg ulations termR E D D I N G R A N C H E R I A V

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“modern,” “historica l

, ” and “temporal” connections to the Tribe’s orig inal land. 25 C.F .R. § 292.12. At iss u e h ere is only the temporal connection. A tribe can demonstrate a “temporal” connection in one of two way s:

(1) The land is included in the tribe ’ s first request for newly acqui r e d lands since the tribe was restored to F ederal recog nition; or

(2) The tribe submitted an application to take the land int o trust within 25 y ears after the tribe was restored to F e d e r al r ecog ni t i o n and the tribe is not gaming on other lands

.

25 C.F .R. § 292.12(c) ( emphasis added). The Strawberry F ields w ere n ot included in the Tribe’s first request for newly acquired lands, so subsection (1) d o e s not apply

. The application w as filed within 25 y ears o f recog nition, but because of the last proviso of subsection (2), t he W in-River Casino became the stumbling block. The Tribe was operating a casino on other lands.

The application remained pending f or more than seven y ears. Then the Tribe, o n Decembe r 1 4
, 2010, wrote to the Secretary to advise that it w ould close the W in-River Casino when the new casino was completed. Eig ht day s l a ter, the Secretary denied the application, stating that “[ b] ecause t h e Tribe cannot me e t the standards articulated in Section 292, the Parcels are not elig ible for the restored lands ex ception.” The denial did not address the Tribe’s December 1 4 l e t t er proposing to close the W in-River Casino.R E D D I N G R A N C H E R I A V

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The T ri b e then broug ht suit in the Northern District o f California, c halleng ing the Secretary ’s determination that the Strawberry F ields are not covered by the restored lands

ex c e ption. The T ribe arg ued that the r eg ulation’s limitation

on operating a second ca s i no was unreasonable. The court g ranted s ummary judg ment in favor of the Secretary
, concluding that the Secret ary had the power to promulg ate reg ulations under I GRA, that the Secretary ’s interpretation o f the restored lands ex ception w a s reasonable, and that the Secretary did not act arbitrarily and capriciously in de n y ing the Tribe’s request to operate two c asinos, but did n ot address the Tribe’s alternative p roposal to close the first casino once the new one was operational.

The Tribe now appeals. I t c o ntends that the reg ulations

are arbitrary and capricious in limiting tribes to one casino on restored lands. I t further contends that, even if the limitation is reasonable, the Secretary was arbitrary and capri c i o us in deny ing its application even thoug h it had offered to c lose the first casino so that the application would not r e s u l t in more than o ne casino. W e uphold the reasonableness of the
reg ulation itself, but direct the ag ency to consider whether the
reg ulation bars the Tribe’s moving its casino o peration from the old casino to a new one.

D ISCUSSION

I. The Regulation is Reasonable

I n promulg ating the reg ulation at issue here, the Secretary

was implementing the restored lands ex ception to the g eneral statutory ban on tribes us ing land acquired after I GRA for
g aming

. The restored lands ex ception therefore must be read in the contex t of I GRA’s g eneral p rohibition ag ainst g amingR E D D I N G R A N C H E R I A V

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on lands a cquired after 1988. The e x ception was not intended
to g ive restored tribes an open-ended licens e to g a me on newly acquired lands. R a t h er, its purpose was to promote parity between established tribes, which had substantial land h o l d ing s at the time of I G RA’s passag e, and restored trib e s , which did not. See City of Roseville

, 348 F .3d at 1 0 3 0. I n administering the restored lands ex ception, the Secretary needs to ensure that tribes do not take advantag e of the

ex c e ption to ex pand g aming operations unduly an d t o t he detriment of other tribes’ g aming operations.

To that end, the Secretary p romu l gated a series o f requirements a tribe must satisfy in o rder to demonstrate that newly a cquired lands are part of the effort to restore a reservation and are therefore elig ible for g aming

. T o benefit from the restored lands ex ception, a tribe must est a b l i s h a “modern,” “ historical,” and “temporal” connectio n to tribal land. 25 C.F .R. § 292.12. B e c ause these factors are g eneral, the regulation further defines each.

The “modern” c o nnec t ion means that the land is within the state or states in which the tribe is c u r r e n t l y located a nd is, by at least one of several measures pr e scribed by the
reg ulation, in close prox imity to t h e t r ibe’s other lands. 2 5 C

. F.R. § 292.12(a). The Secretary concluded that the Tribe satis f

i e d this requirement. The Secretary also concluded that the Tribe satisfied the “historical” connection under 25 C.F .R. § 2 92.12(b) because the land in question is

nex t to historic lands.

I n order to establi s h a “temporal connection,” the tribe
must demonstrate e ither (1) that the land was part o f t he tribe’s first request for n e w l y acquired lands after being restored to federal recog nition, or ( 2) that it submitted anR E D D I N G R A N C H E R I A V

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a p p l i c ation to take the land into trust within 25 y ears af t e r being restor e d

, a n d that it is n ot c urrently g aming on other lands. Id. § 292.12(c). As the Secretary stat e d i n the preamble to 25 C.F .R. § 212(c), “the temporal limi t a t i on effectuates I GRA’s balancin g o f the g aming interests o f newly a cknowledg ed and/or restored tribes with the interests of nearby tribes and the s u r rounding community .” 73 F ed. Reg . 29,367.

I n this way , the reg ulatio n strikes a b a lance b etween allowing restored tribes to g a m e o n n ewly acquired lands, while at the same time protecting the interests of e stablished tribes. Section 292.12(c) allows a tribe to g ame o n any lands tha t w e r e a c quired as part of its first request f or lands a fter
reg aining federal recog nition, but it limits g aming on lands acquired as part of subsequent requests. After a tribe’s first request f or land is g ranted, it c a n o n l y g a me on newly acquired lands if it requests that these lands be taken into trust within 25 y ears of restoration, and it is not a l r ea d y gaming elsewhere. 2 5 C.F .R. § 292.12(c)(2). A s a result, once a restored tribe builds a casino, it ca n n o t b uild additional casinos on newly acquired lands. W i thout this limitation,

res t o red tribes would be able to ex pand their g aming operations indefinitely

. This would g ive them an unfa i r advantag e over established tribes who g enerally cannot g ame

on any lands acquired af t e r I GRA w as passed. 25 U .S.C. § 2719(a).

The Tribe contends that the limitation is nonetheless unreasonable because it is not contain e d i n t h e statute. The statute, o f course, merely creates an ex ception f o r restored lands, without attempting to define the term o r dictate how it should b e administered. Cong ress authoriz ed the Secretary
to promulg ate reg ulation s t o achieve those purposes, as isR E D D I N G R A N C H E R I A V

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standard practice in today ’s u nderstanding of administrative law. Thus an ag ency charg e d with administering a statute has the pow e r t o make rules “ to f ill any g ap left, implicitly o r

ex p licitly

, by Cong ress.” Mo r t on v. R u iz
, 415 U.S. 199, 231 (1974).

The Administrative Procedure Act according ly sets forth procedures b y which ag e ncies promulg ate rules “to implement, interpret, or prescribe la w or policy .” 5 U .S.C. § 551(4). When an ag e ncy uses this rule making authority to define a g eneral or ambig uous p r ovision of a statute, its interpretation is owed deference so long as it is reasonable. U n i ted States v. M

ead Corp.
, 533 U.S. 218, 229 (2001) ( citing Chevron, U.S.A., I nc. v

. Natural Res. Def. Counci l

, Inc ., 467 U.S. 837, 845 (1984)).

W e conclude that the Secretary reasonably implemented the restored lands e x ception, to limit the ex tent to which a restored tribe may operate g aming facilities on restored land, in order to ensure parity between rest o r e d a nd e stablished tribes. There is nothing unreasonable about the regulation’s intent to prevent restored tribes from acquiring additional land to operate multiple g aming operations.

II. The Indian Canon Does Not Apply

I n I ndian law there is a canon that, where a statute is not clear, it must be interpreted liberally in favor of I ndians. This

canon was most recently a r ticulated b y the Supreme Court in Montana v. Black

f eet Tribe of I

ndians

, 471 U.S. 759, 766 (1985). The Tribe therefore asserts that e ven if the reg ulation could be viewed as rea s o nable, the Blackfeet presumption precludes the Secretary f rom p rohibiting additional g aming on restored lands.R E D D I N G R A N C H E R I A V

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The Tribe points out that no such “numerical limitation” is clearly e x pressed w ithin the lang u ag e of the sta t u t e

. See 25 U.S.C. § 2719(b)(1)(B )(iii). The Tribe’s position is that, because the limitation is contrary to the interests of the Tribe,

we must apply the canon to hold that the numerical limitation violates Cong ressional purpose. T h e g overnment, on the other hand, points to a competing presumption of de fe rence to ag ency interpretation o f a statute. See Chevron

, 467 U.S. at 845.

The Tribe’s a

rg ument seems foreclosed by precedent in this Circuit. This court has repeatedly “ d eclined to apply [ the I ndian law c a n o n of c o nstruction] in lig ht of c ompeting deference g iven t o a n ag ency charg ed with the statute’s administration.” Haynes v. United States
, 891 F

. 2d 235, 239 (9th Cir. 1989); see also Seldovia Native Ass’n, I nc. v. Lujan
, 904 F .2d 1335, 1342 (9th Cir. 1990). W e have said this is because the Blackfeet p resumption is mer e l y a “g uideline,” whereas “ Chevron is a substantive rule of law.” W illiams v. Babbitt

, 1 15 F

. 3d 657, 6 63 n.5 (9th Cir. 1997). I n this circuit,

an ag ency ’s leg al authority to interpret a s tatute appears to trump any practice of construing ambig u o us s t atutory provisions in favor of I

ndians.

Ev e n if the Blackfeet presumption mig ht be applied in

some c ircumstances in our circuit, however, it would not apply in this case. This is because all tribal interests are not alig ned. An interpretation of the restored lands ex ception that would benefit this particular tribe, by allowing unlimited use of restor e d land for g aming purposes, would not necessarily benefit other tribes also eng ag ed in g aming

. I t mig h t w ell work to their disadvantag e.R E D D I N G R A N C H E R I A V

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The canon should not apply in s u ch circumstances. The canon has been applied only when there is a choice between interpretations that would favor I ndians on the one hand a nd
state or p rivate actors on the other. F or ex ample, in Blackfeet itself, the Supreme Court applied the canon in a dispute between state and tribal interests, interpreting the 1938 Mineral L easing Act. The Court concluded that the s t a t u te should n o t be read to permit the state of Montana to tax I ndian roy alty income from mineral leases, becaus e the A ct did not ex pressly authoriz e stat e t a x ation of I ndian roy alty interests. 471 U.S. at 767. I n the a bsence of such an ex press authoriz ation, the statute had to b e interpreted in favor of the I n d i a n s. This court has ex p lained that the Blackfeet presumption d oes not apply when tribal interests a re adverse because “[ t] h e g overnment owes the s am e trust d uty to all tribes.” Confederated Tribes of Chehalis Indian Reservation

v

. W ashington.

, 9 6 F .3d 334, 340 ( 9th Cir. 1996). I t can n o t favor one tribe over another. T h e district c o u r t therefore correctly refused to apply the I n dian c an o n in the circumstances of this case.

III. There H as Been No Unexplained Change in Agency P olicy

The Tribe arg ues that the Secretary ’s denial of it s application was incon s i s tent with prior ag ency practice a nd therefore a

rbitrary and c aprici o u s

. T he Tribe points to a sing le past ag ency decision that p ermitted the E l k Valley Rancheria t o ga m e on restored lands even thoug h it was already g aming on other lands. The Elk Valley decision was before the promulg ation of 25 C.F .R. § 292.12 in 2 0 08 a nd before the Tribe’s application was completed in 2010.R E D D I N G R A N C H E R I A V

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I t is not entirely

clear that the Elk Valley d e cision would have been any different u nder the current reg ulation. Under the c urrent reg ulation, a tribe may g ame on lands provi d ed that they ar e “included in the tribe’s f irst r equest for newly
acq u ired lands since the tribe was restored to federal
recog nition” reg ardless of whether the tribe is already g aming elsewhere. 25 C.F .R. § 292.12. The administrative decision is a part of our record and states tha t t h e l a n d s on which the Elk Valley Rancheria soug ht to conduct g aming were p art o f “the first parcels requested by the T ribe to be a cquired i nto trust.”

W h at is more, a

n ag ency is permitted to chang e its p olicy

so long as it pro v i d e s some minimal ex planation for the chang e. See Morales-Izquierdo v. G o n zales

, 486 F .3d 484, 493 (9th Cir. 2007). Even assuming the Elk Valley decision

was inconsistent with the current reg ulation a nd the ag e ncy ’s
t r e a t ment of the Tribe’s application in this case, the ag e ncy provided a sufficient ex p lanation for its chang e of policy

. I n promulg a ting 25 C.F .R. § 2 92.12, the ag e n c y s tated that it wanted to “ex plain to the public h ow the Department interprets th[ is] ex ception[ ].” 7 3 F ed. Reg

. 29,354. I t f urther

ex p lained, that the temporal requirement was desig n e d to “effectuate[ ] the I GRA’s b al a n cing o f the g aming interests of . . . restored tribes with the interests of surrounding tribes and the n earby community .” Id. at 29,367. More ex tensive

ex p lanation w as not required. S e e Robles-Urrea v. H

older

, 678 F .3d 702, 710 n.6 (9th Cir. 2 012) (noting t h a t ev en a “sparse” ex

planation suffices).R E D D I N G R A N C H E R I A V

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IV. Th e A gency Should Have Considered the Tribe’s Alternative Of

f er to Move All G am ing to t he New Casino

Onc e a restored tribe has acquired restored lands, a nd built a casino, the reg ulation bars use of s u b sequent acquisitions to o p erate additional casinos. I t is undisputed that the Tribe was operatin g the W in-River Casino when it submitted its application for the new Strawberry F ields casino. The Tribe’s 2008 a pplication thus contemplated the

co n s truction of a second casino. There w ere apparently discussions between the parties

, because in December 2010 the T ribe wrote to the Secretary o ffering to “memorializ e” its intent to move its g aming o p erations from its current location
to the Strawberry F ields. The Tribe a rg u e s that the Secretary
, in deny ing the Tribe’s a p p lication, a r

bitrarily failed to consider the Tribe’s 2010 representation t h a t i t would not operate multiple g aming facilities. The Secretary denied the Tribe’s application without a ny mention of the Tribe’s offer, althoug h the denial emphasiz ed the spe c i f ic wording of the
reg ulation that conditions the requis i te temporal connection

on a f inding that the tribe “ is n ot g aming on other land.” 25 C.F

. R. § 292.12(c)(2). The district court did not consider the Tribe’s altern a t i v e offer and construed its application a s i f i t necessarily contemplated the o peration of multiple casinos.

An a ge n c y ’s decision is arbitrary and capricious if it ig nores important c onsiderations or relevant evidence on the record. See Port of Seattle, W ash. v. F.E.R.C.
, 499 F .3d 1016, 1035 (9th Cir. 2007) (citing Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm M

ut. Au t o

. Ins. Co.
, 463 U.S. 2 9, 43 ( 1 9 8 3 ) )

. The Secretary did not address the Tribe’s willing ness to close its c urrent c as i n o in o rder to move itsR E D D I N G R A N C H E R I A V

. J E W

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g aming operations to one on n e w l y restored lands. The
ag ency now arg ues, however, that the S e cretary ’s determination was required by the p lain mea n i n g o f the
reg ulation.

Under 25 C.F .R. § 292.12 ( c ) (2 )

, land is elig ible for
g aming if the application is submitted within 2 5 y e a rs a fter the tribe was restored to federal recog nition and “the tribe is
not g aming o n other lands.” The reg ulation thus h as both a 25 y ear deadline and a prohibition a g ainst g amin g o n other lands. The ag ency must look t o the date on which a tribe submits its application to determine wheth e r i t h a s satisfied the 25 y ear deadl i n e

. The reg ulation is not clear, however, that the a g ency must also lo o k to the date of the a pplication
to determine whether the tribe has satisfied the p rohibition
ag ainst g aming on other lands. W hile the reg ulation c ould be

so interpreted, the ag e n cy has so far provided no reason why it should. Allowing a restored tribe to move a casino does not appear to conflict with the statutory p u rpose of ensuring parity among restored and established tribes. Restored tribes, if allowed to operate an indefinite number o f c a s i nos on newly r estored lands, would of course have an advantag e over established tribes, but it i s n ot clear that allowing restored tribes to move a casino to a different locatio n would necessarily

have the same effect.

T he a g ency can p oint out that we g enerally defer t o a n ag ency ’s interp r e t at i o n of its own r eg u lation. See Auer v

. Robbins

, 519 U.S. 452, 4 61 (1997). The administrative proceeding s in this case, however, did not address this issue of interpretation, m u c h l ess provide any reasons for the
ag ency ’s c urrent position. The ag e n c y presented its position for the first time in its b rief, and it o ffered sparse ex planation for it. W e n eed not defer to an ag ency position when ta k e nR E D D I N G R A N C H E R I A V

. J E W

E L L 18

f o r purposes of litig ation. See Christopher v. SmithKlin e Beecham Corp.
, 1 32 S. Ct. 2156, 2166–67 (2012) (noting that “an interpretation is not owed d e ference when it is nothing

more than a convenient litig ating position or a po s t h o c rationaliz atio[ n] advanc e d by an ag ency seeking to d efend past ag ency a ction ag ainst a ttack.”) (internal citat ions a nd
quo t a t ion marks omitted) (alterations in orig inal). The
ag ency ’s interpretation on the administrative record before us lacks ex planation or justification.

I n remanding to the a gency we ex pedite the ag e ncy ’s consideration of the T ribe’s a lternative p roposal. W e do not tell the ag ency what to say

. While the dissent may speculate

on how and why the ag enc y i n terprets the reg ulation, the
ag ency has never addressed these issues. W e cannot defer to what the ag ency

has not done.

W e according ly vacate in part the d istrict c ourt’s g rant o f
summary judg ment with instructions to remand to the ag ency to address whether the Tribe should be permitted to construct a new casino to replace the ex isting one.

CONCLUSION

The judg ment of the distric t c o u rt in favor of the
g overnment i s a f

f irmed insofar as it upholds the Secretary ’s d e nial of the Tribe’s application to operate multiple casin o s

on restored lands. The judg ment is reversed in part, and the

case remanded t o t he district court w ith instructions to remand to the ag ency for consideration of the T r i b e’sR E D D I N G R A N C H E R I A V

. J E W

E L L 19

proposal to close its e x isting g aming o peration upon construction of a new facility

.

AF F IRMED in part, REVERSED and REMANDED in part. Each side to bear its own costs.

CAL L A HAN, Circuit J udg e, concurring and dissenting :

I concur in parts I
, I I and I I I of the majority ’s opinion. I
ag ree that the reg ulation here at issue is r easonable, the I ndian

canon does not apply

, and t h e r e has been no unex p lained

c hang e in ag e ncy policy

. I n other words, I ag ree that the Secretary reasonably rejected the Tribe’s challeng es to the underly ing r eg ulation. H owever, I dissent from part I V o f the opinion because the Tribe did not fairly prompt the Secretary of the United States Department of I nterior (“the Secretary ”

or “the D epartment”) to consider its alleg ed offer to move its

c a s i n o and did not ask the district court to consider t h e alleg ed offer to move the casino. Moreover, on this r e c o rd, there is n o b asis for sug g esting that the such an o f f er would merit relief under the reg ulation. Our s y mpathy for a small, strug g ling tribe d oes not justify formaliz ing a claim that was

never clearly pr e s ented to the Secretary
, was not fairly presented to th e d i strict court, and is of questionable merit. Our opinion should conclude this litig ation.

I

As the o p i n i o n notes, the Tribe made its application in 2003. The application was supplemented on seve ral occasions, including on D ecember 22, 2008, and o n October 29, 2010. There is no t h i n g in either of these detailedR E D D I N G R A N C H E R I A V

. J E W

E L L 20

s u p plements that sug g ests that the Tribe contemplated clos i n g its W in-River Casino if its application for Strawberry F ields was approved.

Neg otiations c o n tinued throug h a meeting in N ovember 15, 2010. I t appears that the possibility that the Tribe mig ht close its W in-River Casino if it were allowed to b uild a casino on Strawberry F ields was first r a i sed in a letter dated December 14, 2 010, from Barbara Murphy

, Vice C hairperson, Redding Rancheria, to Del L averdue, D ep u t y Assistant Secretary - I ndian Affairs, Department o f I nterior. The letter stated:

Since our meeting in Albuquerque, the Tribal Council has m e t and discussed our o ptions with reg a rd to th i s application, and we a re determined to do w hatever is necessa r y to alleviate any concerns y ou m ay have about

o u r c u r r e nt landh o l d i n g s a n d ga m i n g operation.

According ly

, while we c o ntend that our

ex isting g aming f

acility d oes not preclude us from obtaining a restored lands op i n ion for Strawberry F ields, I want to personally assure y ou of our intent to close our ex isting facility and relocate our g aming ope r a tion to the Strawberry F ields property

. A dditionally

, we

are willing to memorializ e this intent in an ag reement with the Departm e n t and look forward to talking

to y o u about [ t] his further.

Several features of this letter are relevant. F irst, the Tribe continues to press its contention that its “ex isting g am ingR E D D I N G R A N C H E R I A V

. J E W

E L L 21

facility does not preclude [ it] f rom obtaining a restored lands opinion for Strawberry F ield.” Second, the letter offers only the Vice Chairperson’s personal assurance of th e T ribe’s intent to relocate its casino to Strawberry F ields

. Third, the letter asserts that the Tribe is “willing to memorializ e this intent.” F ourth, the Vice Chairperson indicates that she looks forward to talking to the Deputy A ssistant Secretar y a b out this matter.

Thus, it is doubtful that the December 14 letter can, o r should, be r ead as convey ing a f ormal offer by the Tribe to close the W in-River Casino once the Strawber r y F ields Casino opened. Rather, the Vice-Chairperson offered her personal assurance as to the Tribe’s intent a nd that the Tribe

was “willing to memorializ e this intent in an ag reement.” Moreover, the letter does n o t contain any arg ument o r

ex p lanation as to why the Tribe’s offer to move its casino mig ht be relevant to the Secretary ’s co n sideration of the Tribe’s app lication. Particularly in lig ht of the questionable relevance of this offer to the Secretary ’ s analy sis ( see part I I I
, infra ) , the letter is best understood as an attempt to continue
neg otiations: an effort to neg otiate a last minute deal.

Eig ht day s later, o n December 22, 2010, the Secretary o f the I nterior issued a

n eig ht-pag e, sing le-spaced decision deny ing the Tribe’s a

pplication. A review of the December 22 deci s i o n shows that it was carefully crafted and that the preliminary d eterminations must have been made w e ll before December 14, 2010. I n its penultimate section t h e l etter states:

W h ether we consider the Tribe’s first request for newly acquired lands to b e the trust-totrust transfers or the subsequent fee-to-trustR E D D I N G R A N C H E R I A V

. J E W

E L L 22

requests, it is evident that t h e s ubject Parcels

were not included in e ither of these requests. Therefore, the Parcels were not “included in the [ T] ribe’s first re q u es t f or newly acquired lands since the [ T] ribe w as restored to F ederal
recog nition” and the y cannot meet the standard in 25 C. F . R. § 292.12(c)(I )

.

To meet the alternate standard under 25 C. F

. R. § 2 92.12(c)(2), a tribe must demonstrate that it submitted the land into trust application within 25 y ears after the tribe was restored to F ederal recog niti o n and the tribe is not g aming on other lands.

I n this case, the Tribe’s ex ist i n g g aming facility precludes a finding under this section.

Even if the Tribe’s letter could be viewed as a plea f or the creation of an ex ception to the requirement that “ the tribe is
not gaming on other land ,” which is c o n trary to its natural

me aning

, see infra

, the December 14 letter contained no

ex p lanation or justification f or such a request. According ly

, as the T ribe’s alleg ed offer to move its c asino d id not appear to be releva n t to the Secretary ’s decision, the Secretary did not, and should not be required or ex pected to, address the offer in any detail. Rather, the Secretary succinctly ex p lained that he denied the Tribe’s application because of its “ex isting
g aming f acility .” The o ffer to move t he casino did not chang e the fact that the Tribe had an ex isting casino w hen it submitted its application.

The conclusion that the December 1 4 letter did not clearly present to the Secretary a n a lte r n a t e p r oposal of moving theR E D D I N G R A N C H E R I A V

. J E W

E L L 23

ex isting casino is supported by the l a c k of any thing in the record sug g esting that the Tribe thoug ht otherwise. There is

no indication that the Tribe asked the Secretary to reconsider his decision in lig ht of the D ecember 1 4 l e t t e r. I ndeed, the Tribe’s c omplaint filed i n t h e district court does not even mention the December 14, 2010 letter. Parag r aph 23 states that the Tribe amended its request on October 29, 2010. Parag raph 24 then states that Department denied the Tribe’s request in the December 2 2, 2010 letter. There is n o mention

o f the November 15, 2010 meeting or Ms. Murp h y ’s December 14, 2010 letter.

T he ex isting record d oes n ot support the majori t y ’s
statement that the Tribe p r esented the Secretary with an “altern a t i v e proposal to close the first casino once the new

on e w a s o p erational.” Maj. at 9. Rather, the possibility o f moving the casino appears to have been tentatively raised in

a last minute letter with no ex p lanation of why the proposal would be permissible under the applicab l e r eg u lation. The “alternate proposal” was not addressed i n the Secretary ’s decision, and the Tribe never ask e d the Secretary to reconsider his decision in lig h t o f i t s alleg ed “ alternate proposal.” W e hold that the Secretary ’s denial o f the application w as otherwise re asonable. This decision should
not be u ndermined by subsequent attempts to re-characteriz e what h appened. B e cause n o “alte rnate proposal” was fairly presented to the Secretary , his failure to address it cannot be described as a

rbitrary or capr i c ious. F urthermore, if the “alternate proposal” h as any merit, the Tribe presumably can raise it a n ew w i th the Department. Such a course is surely prefer a b l e to remanding this case to the district court, to remand it to the Secretary
, to consider a c laim that was not fairly raised before the Department.R E D D I N G R A N C H E R I A V

. J E W

E L L 24

II.

Contrary to the majority ’s opinion and the Trib e ’s representations in its appellate b rief, the district court’s 32-
pag e opinion is not based o n a misperception that the Tribe
soug h t to operate multiple casinos. As noted, the December 14 letter was not even mentioned in the Tribe’s complaint.

F urthermore, a review of the b riefs filed in the district court reveals that the alleg e d “alternate proposal” was never
arg ued in writing to the distr i ct court. The December 14 lett e r i s first mentioned in the Tribe’s September 30, 2011 Motion for Summary J udg ment as “ summariz ing many o f the Tribe’s arg u ments supporting its position that the Proper ty fell within the Restored L ands E x c eption.” 1 However
, the thrust of the motion w as that “the validity of the Decision

. . . depends on the validity

of the Reg ulations.” 2

1 P arag rap h

1 9 in th e Mo t io n

f o r Su m m ary J u d g em en t read s:

On Decem

b er 1 4
, 2 01 0
, th e T rib e sen t a letter to M r. L av erd u r e reiteratin g th e d iscu ssio n s th at o ccu rred d u rin g th e N o v em

b er 15
, 2 0 1 0 m eetin g , an d

su m m arizin g m an y o f th e T rib e’ s arg u m en ts s u pp o rt its
p o sitio n th at th e P ro p erty

f ell w i th th e Resto red L an d s Ex cep tio n

.

2 T h e m o tio n

stated :

T h e A ssistan

t S ecretary ’ s Decisio n th at th e T rib e’ s req u est m u st b e d en ied w as b ased o n th e co n clu sio n th at t h e P ro p erty d i d n o t m eet th e req u irem en t s o f th e Reg u latio n s, in p articu lar 2 5 C

. F. R. § § 2 9 2

. 2 an d 2 9 2 .7 –2 9 2 .1 2

. T h e v alid ity o f th e Decisio n , th eref

ore d ep en d s o n

th e v alid ity

o f th e Reg u latio n s.R E D D I N G R A N C H E R I A V

. J E W

E L L 25

The motion does conta i n a section alleg ing that “the Assistant Secretary ’s Decision violates the APA because h e refused to consid er important information and arg uments submitted by the tribe

. ” T h i s section does mention the December 14, 2010 letter, b ut only as supporting the Tribe’s
arg ument that “because th e lands upon which the Tribe was conducting g aming were within the orig inal boundaries of the Tribe’s Reservation, that g aming had n o effect on the Tribe’s

re quest that the Property be taken into trust pursuant to the Restored L an d s Ex ception.” The December 14, 2 010 letter does not make an appearance in the Tribe’s reply brief.

The o n l y l a ng uag e in the district court’s opinion that
arg uably implies that the district court thoug ht that the Tribe
soug h t to operate multiple casinos is the third sentence in the opinion that reads: “The Tribe seeks to ex pand its g aming operations by building a second casino on 230 a cres o f undeveloped riverfront lands.” However, this is an accurate statement, even if the T ribe intended to close the W in-River Casino. The Tribe did seek to b uild a “second” c a s i n o

. Moreover, the Tribe did intend to ex pand its operations a s the proposed Straw b erry F ields Casino would be much larg er than the W in-River Casino.

The district court did address the Tribe’s c l aim that the Secretary “ refused to c o nsider important info r m a tion, a nd found that the Decision w as not arbitrary or capricious.” The district court c oncluded that the Secretary had “ex plained that the T ribe c ould n ot satisfy the alter n at e c riterion for establish i n g a temporal connection to newly acquired lands, which depends on a trib e c o nducting g aming on no other lands, see § 292.12(c)(2), because the tribe already operated the Win-River Casino,” and that there was “nothing arbitrary

or capricious about this application o f the Reg u lations.” TheR E D D I N G R A N C H E R I A V

. J E W

E L L 26

district court further opined that “[ t] h e Tribe’s real objection
t o t he Decision appears to be not how I nterior applied t h e Reg ulations but rather that I nterior applied them at all.”

Thus, the district court held that the Secretary reasonably d enied the Tribe’s request b ecause the Tribe was already
g aming on other land. The district court did not consider (and apparently was not asked to consider) whether the reg ulation could, o r should be, revised o r interpreted to allow the transfer of g a ming from o ne location to another. J ust a s t h e Secretary ’ s decision should not be set aside for not addressing

an arg ument that was not clearly raised in the administrative proceeding s, the district court should n ot be reversed for not addressing an argument that the T ribe failed to advance before it. I t appears that the Tribe waive d i t s a lternate proposal arg ument by failing to present it to the district court.

III

Fi n a lly

, I cannot a g ree with the majority ’s g ratuitous
comments on the merits o f the Tribe’s “alternate proposal” to close its W in-River Casino and o pen a c asino on Strawberry F ields. The panel is in accord tha t ( 1 ) the reg ulation is reasonable, (2) the I ndian canon does not apply

, and ( 3) there has been no unex p lained chang e in ag ency policy

. These

cover t h e p r i m ary issues raised by the Tribe. I n deed, in its reply brief, the Tribe reiterates that it “has consistently challeng ed a very specific compo n e n t of the Secretary ’s interpretatio n ; t h e requirement set forth in 25 C. F

. R. § 292.12(c)(2) that the tribe must not ‘already be g aming on other lands.’” Our ag reement w ith the district court on these three issues should end this litig ation, there is no need for further comment.R E D D I N G R A N C H E R I A V

. J E W

E L L 27

However, section I V of the majority opinion, a fter incorrectly accepting as fact both that the Tribe made an

a lternate proposal to the Department and that the distr i ct court’s order contemplated t h at the Tribe soug ht to operate multiple casinos, 3 proceeds to offer q u e s tionable dicta. The majority recog niz es that the r eg u lation contains a p rohibition
ag ainst g aming on other lands, but then comments:

The reg ulation is not c l e a r, however, that the
ag ency must a lso look to the dat e o f the application to determine whether the tribe has satisfied the prohibition a g ainst g aming on other lands. While the reg ulation could be so interpreted, the ag ency has so far provided no

reason why it shoul d. A llowing a restored tri b e to move a casino does not appear to conflict with the statutory purpose of ensuring parity among restored and established tribes.

Maj. at 17.

This approach is wrong on a number of fronts. Fi rst, it takes liberty with the reg ulat i on’s lang uag e. The critical subsection r eads: “ t h e t ribe submitted a n application to take the land into trust within 25 y ears after the tribe was restored
to F ederal recog nitio n a n d the tribe is not gaming on other lands

. ” W hy isn’t the most natural r eading of the subsection that the Secretary must look to the date of t h e application in determining whether the application was submitted within t h e 25 y e ar period and whether the tribe “ is not gaming on other

3 T h e m aj o rity states th at: “ T h e d istrict co u rt d id n o t co n sid er th e T rib e’ s altern ativ e of

f er an d c o ns t r u ed i ts ap p licatio n as if it n ecessarily

co n tem p lated th e o p eratio n

o f m u ltip le casin os.”R E D D I N G R A N C H E R I A V

. J E W

E L L 28

lands ? ” The subsection directs the Secretary to look at what is happening , not what mig ht happen in the future.

Second, this is the Secretary ’s position as set forth in the December 22, 2010 decision. T h e Secretary ’s brief reasserts that “the reg ulations are clear, a nd c o n tain no provision for an

ex p ression of future intent with an undefined time frame.” There is no doub t that throug hout the proceeding s the Tribe has operated the W in-River Casino. Thus, accordi n g to the Secretary
, whether the Tribe intended to close the W in-River Casino if it prevailed on its application was “irrelevant.” The Department’s interpretation of its own reg ulation is controlling because it is not plainly erroneous or inconsistent with the statute. Auer v. Robbins

, 519 U.S. 452, 461 (1997) (holdin g t h at a Secretary ’s interpretation of a Department’s
reg ulation is controlling u n l ess plainly e rroneous o r inconsi s t e n t with the reg ulation). I ndeed, the Tribe has not arg ued, and the majority has not held, otherwise. Moreover, this is not a situation where the Secretar y has chang ed his position d uring litig ation or offered a post hoc rationaliz ation. S ee Christopher v. SmithKline Beecham Corp.
, 132 S. C t

. 2156, 2166–67 (2012). Rather, the Secretary has consistently
g iven “is not gaming o n other lands ” i t s ordinary meaning

. I t is the Tribe that on appe a l a dvances a new proposed definition of the term.

Third, the majority ’s approach places the cart b e f ore the horse. I ag ree with the majo r i t y that “the Secretary reasonably implemented the restored lands ex cept ion,” a nd that under the Administrative Procedure Act, the Secretary ’s “interpretation is owed deference so long as it is reasonable.” Maj. at 1 2 (citing United S tates v. Mead Corp.
, 533 U.S. 218, 229 ( 2001); and Chevron, U.S.A., Inc. v. Natural R es. Def. Council, I nc. , 467 U.S. 8 3 7
, 845 ( 1984)). We have f urtherR E D D I N G R A N C H E R I A V

. J E W

E L L 29

held that “ [ u] nder the APA, w e may only set aside an ag ency action if it is arbitrary

, capri c i o u s , a n abuse of discretion, o r otherwise not in accordance with law.” Mac C l a rence v

. United States Environm e n tal Protection Agency
, 596 F .3d 1 123, 1130 (9th Cir. 2010) (internal quotation marks a n d citation o mitted). The Tribe h a s the burden of show i ng that the Secretary ’s int erpretation of the reg ulation is plainly
erroneous, and the Secretary had no oblig a t i o n to anticipate what the Tribe mig ht arg u e on appeal. Here, the Secretary ’s interpretation is reasonable, as the majority essentially admits. Maj. at 17. The Tribe has failed to demonstrate that the Secretary ’s reading of “ is not gaming on other lands ” was arbitrary , capricious or an abuse of discretion.

Moreover, even if the Secre t a r y ’ s interpretation of “ not g aming ” was not the most reasonable readin g o f the subsection, it is at least sufficiently reasonabl e t o place the burden of proving a d ifferent interpreta t i o n on the Tribe. However, the r ecord shows that althoug h the Tribe informed the Secretary of its willing ness to move its casino, it never offered any a

rg uments to the Secretary or the district court a s to why its o f

f e r was, o r should be, relevant to the interpretation of the reg ulati o n. Even the Tribe’s passing
arg ument on this i s s u e i n its b rief to this court is devoid o f
any citation to case law or reg ulation.

F inally

, the asserti o n t h a t moving a casino “does not appear to conflict with the statutory purpose o f ensuring parity a mong restored and established t r ibes” is d icta, unsupported b y any

thing in the record, and p o ssibly contrary to panel’s reasoning for otherwise affirming th e S ecretary ’s decision. The Tribe wants to build the Strawberry Fi e l d s Casino b ecause it wou l d b e big g er and presumably more profitable than the W in-River Casino. B u t wouldn’t allowingR E D D I N G R A N C H E R I A V

. J E W

E L L 30

r estored tribes, but not established tribes, to move thei r casinos to newly acquired land alter the bal ance b etween restored and established tribes? Perhaps, if the Tribe’s lands had never been confiscated, it mig h t have built its casino at a better location in the first instance, but it is not clear why the Tribe’s particular challeng es a re, or should be, relevant to the Secretary ’ s interpretation of the reg ulation. I am at a loss
to ex plain how the majority can otherwise affi rm the Se cr e tary ’s decision b ut then sug g est that the Tribe’s intent
to move its casino rather than operate a second casino mig ht somehow c hang e the Secretary ’s interpretation of the
reg ulation.

IV

I f the Tribe wants to ask the Secre t a r y to reconsider the December 22, 2010 decision on the basis that “ is not gaming

on other land

” may , or should b e, interpreted to a llow a Tribe
to move its casino f

rom ex isting land to newly acquired land, it presumably may d o so. I ex press no opinion as to whether the Secretary should e n tertain, or g rant , s uch a request. However, havi n g u n animously determined that the Secretary ’ s interpretation o f “ is not gaming on other land ” is

r e asonable, we should not comment o n the Tribe’s belat e d offer to move its casino. This is so because the Tribe did not f airly present its arg ument to the Secretary or to the distr i ct court. Furthermore, the majority ’ s dicta is contrary to the Secretary ’ s reasonable interpretation o f the reg ulation, which is entitled to d eference, a

nd the dicta is unsupported by facts

or leg al arg ument. A ccording ly

, the majority ’s m i s gu ided championing of the Tribe’s o f fer to move the casino misconceives the judiciary ’s re v iew function under the Administrative Procedure Act, and is unlikely to produce any actual benefit for the T ri b e

. Because we should limit ourR E D D I N G R A N C H E R I A V

. J E W

E L L 31

opinion to our deter mination that the Secretary otherwise reasonably i n t e rpreted the reg u lation and denied the Tribe’s application, I

dissent from part I V of the opinion.